GRACE AGBOKU & ORS. vs . AUGUSTINE YAOVI AGBOKU & ORS. [2004]DLCA6481

Date	2004-02-19
Suit No.	CIVILAPPEAL NO. 18-2003
Citation No.	[2004]DLCA6481

ESSILFIE-BONDZIE J.A. (PRESIDING)

GBADEGBE J.A.

ANIN-YEBOAH J.A

CHARLES HAYIBOR FOR APPELLANTS

[2004]DLCA6481
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >GRACE AGBOKU &amp; ORS.<o:p></o:p>(PLAINTIFFS/APPELLANTS)<o:p></o:p>vs .<o:p></o:p>AUGUSTINE YAOVI AGBOKU
&amp; ORS.<o:p></o:p>(DEFENDANTS/RESPONDENTS)<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p>CIVILAPPEAL
NO. 18-2003&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 19TH FEBRUARY, 2004.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
border-left:none;border-bottom:solid windowtext 1.5pt;border-right:none;
padding:1.0pt 0in 1.0pt 0in">

COUNSEL:<o:p></o:p>

CHARLES HAYIBOR FOR
APPELLANTS.<o:p></o:p>

</div>CORAM:<o:p></o:p>ESSILFIE-BONDZIE J.A.
(PRESIDING), GBADEGBE J.A., ANIN-YEBOAH J.A.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
border-left:none;border-bottom:solid windowtext 1.5pt;border-right:none;
padding:1.0pt 0in 1.0pt 0in">

<p class="MsoNormal" align="center" style="text-align:center;text-indent:.5in;
border:none;mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:
solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>The
decision of the Court was read by Gbadegbe J.A. as follows: <o:p></o:p>The question for our
decision in this case is whether or not in commencing the action in the court
below the plaintiffs (hereinafter for convenience referred to as the
appellants) ought to have extracted a citation calling upon the last surviving
executor to bring into the registry of the High Court Accra the probate of the
will granted to them on the 29th of June 1994 in respect of the deceased's
estate in compliance with the provisions of Order 6 rule 6(1) of LI 1515? It is
important to note that whiles the defendants (hereinafter for convenience
described as the respondents) were of the view that the action not having been
issue in compliance with the mandatory provisions of the said rule was
incompetent, the appellants took the view that since the reliefs which they
were demanding from the court did not seek a 'revocation' of the said grant
there was no need for them to comply with the rule. I must say that in the
court below and before us in these proceedings the parties took substantially
the same rival positions and as such this appeal arises within a narrow compass
for our determination whether having regard to the plaint of the appellants
their action suffered from a non-compliance with the rule in question which
reads thus: <o:p></o:p>"Where an action is brought for
the revocation of a grant of probate or letter of administration of the estate
of a deceased person the plaintiff shall serve a notice on the person to whom
the probate or letters of administration as the case may be was granted
requiring him to bring and leave at the Registry the probate or letters of
administration".<o:p></o:p>&nbsp;That the above rule is mandatory and a
non-compliance with it would invalidatesic an is not in issue. See (1) Heward
Mills vs: Heward Mills [1992] 1 GLR 153. It would appear from the proceedings
before us that the controversy which we have to determine turns on the question
whether or not the rule in question was applicable having regard to the plaint
as formulated by the appellants. It is the case of the appellants that their
claim did not seek a revocation of the grant of probate made by the court on
the 29th of June 1994, and therefore they were not required to comply with the
rule as decided in the Heward Mills case. I have examined the statements
submitted to us by the parties and come to the conclusion that in so far as the
appellants seek an order for the 'removal' of the 3rd respondent as the
surviving executor of the last Will and testament of Nichodemus Agboku which
relief if acceded to has the effect of recalling or bringing to an end the
office of executor to whom probate was earlier on granted the action seeks in
substance an order for the revocation of the grant made on 29th June 1994 by
the Court. It being so, in my opinion the failure to comply with the mandatory
provisions of Order 6 rule 6 (1) was fatal to their action as indeed the court
below found against them. <o:p></o:p>I wish to point out that
since the respondents objected to the competency of the action on the ground
which the appellants alleged as the basis of their claim for the removal of the
last surviving executor, this court has to consider the ground on which the
relief for removal was based and deem it as true for the purpose of considering
the objection. The compliant made by the appellant against the 3rd respondent
is that he had abandoned the testamentary instructions of the testator and by
his inaction enabled the 1st and 2nd respondents to resort to doing things
which were not directed in the last Will of the testator, hence the need for
his removal. In my thinking this complaint amounts to an allegation that he had
renounced his office as executor and was conducting himself in a manner that
was not in the interest of those beneficially entitled thereto. This charge in
my opinion though not claiming that the probate was granted fraudulently or
irregularly raises a matter which concerns the court's real object of ensuring
the due and proper administration of the estate and justifies the revocation of
the probate granted if proven. Therefore, in my view the mere fact that the
writ uses the word "removal" but not revocation should not deprive
the court from looking at the substance of the action to determine whether the
appellants ought to have satisfied the conditions of Order 6 rule 6 (1)
relating to the deposit of the probate in the Registry of the court. I think
that this is a clear instance in which the Court must look at the substance of
the action and not its mere form as expressed in the formulation of the reliefs
indorsed on the writ of summons. This approach calls for an examination of the
consequences which might result in the event of the grant of the claim of the
appellants. In the case of Re: Loveday, In the Goods of [1900] P 154 it was
said in the course of the judgment at page 156 as follows: <o:p></o:p>"Of course it may be
said that creditors who apply for grants stand in a somewhat different position
from residuary legatees or next of kin, because, inasmuch as they are specially
appointed by the Court, the court might substitute another administrator in
their place upon their failure to carry out the administration. But, in my
opinion, the fact of the first administrator being a creditor ought really not
to make any difference in regard to revocation. After all, the real object
which the Court must always keep in view is the due and proper administration
of the estate and the interests of the parties beneficially entitled thereto,
and I can see no good reason why the court should not take fresh action in
regard to an estate where it is made clear that its previous grant has turned
out abortive or inefficient. If the court has in certain circumstances made a
grant in the belief and hope that the person appointed will properly and fully
administer, I do not see why the court should not revoke an inoperative grant
and make a fresh grant". <o:p></o:p>In the instant
proceedings, by their action the appellants substantially sought a revocation
of the grant made by the Court and also a fresh grant by way of letters of
administration with a will annexed due to the fact that if their claim to the
"removal" of the surviving executor was allowed then there would be
no surviving executor to whom the probate might be granted hence the grant of
letters of administr</main>